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anti itg 5ic\)elopment
ERNEST HEATON, B.A., OXON.
Barrister - at - Law of Osgoode Hall, Toronto
TORONTO
THE HUNTER, ROSE COMPANY, Limited
1904
I
' '^ To-
"J f\ ■ !
o
■5^
V<3
Entered accordinK to Act of the Parliament of Canada in
the year one thousand nine hundred and four by ERNEST
HEATON, at the Department of Agriculture.
Entered according to Act of Congress in the year one
thousand nine hundred and four by ERNEST HEATON,
In the office of the Librarian of Congress at Washington.
Copyright in Great Britain, 1904.
All Rights Reserved.
CONTENTS
I
The Trust Company Idea
Old Legal Rule, Corporations could not be Trustees : Differ-
ent Types in United States and British Colonies : Experi-
incntal Legislation.
Pages 7 and 8
u
The American Trust Cimpany
Origin of Idea : Connection with Life Insurance : First Trust
Company in United States : Periods of Growth ; Unprece-
dented Development : Department Store of Finance :
Functions : Criticism of Banking Interests and Answer :
Laws Concerning : Safeguards.
Piga 9 to 14
m
The Canadian Trust Company
First Company Formed in Canada : Present Companies :
Functions : Laws Affecting : Official Individual Trustees
in British Columbia. Prince Edward Island and Quebec.
Pages 15 to 20
IV
The Trust Company Idea in England
Slow Growth : Laws Affecting i Present Companies : Judicial
Factors: Judicial Trustees
Companies.
Pages 21 to 24
Use made of Colonial Trust
CONTENTS {Continued)
The New Zealand Public Trust Office
Reasons for Formation : Fun-^tions : Regulations Concern-
ing : Last Returns : Competing Trust Companies.
Pagca 25 to 28
VI
The Australian Trust Gimpany
Functions : Laws Concerning : Official Individual Trustees :
Origin of Idea : First Company Formed in Australia :
Present Companies : Total Assets and Business : Quota-
tions from Australian Press.
Pages 29 to 33
vn
The Trust G>mpany Idea in Other Countries
Trust Companies in South Africa and Mexico : How Ground
is Covered in India, France, Austria and Germany,
Pages 34 and 35
vm
The Functions of a Trust Company
Functions of United States Type and Colonial Type Compared :
Advantages of Departmental Store Idea: Failure of In-
dividual Trustee : Foreign Business.
Pages 36 to 39
CONTENTS {.Continued)
IX
Advantages Offeted by a Trust Company
Advaiitases which have been Advertised by Companies : Other
Advantages : Quotations from Australian Writer.
Pages 40 to 42
Appendix
List of Trust Companies in Australia, Canada and England :
Reference for List of American Companies.
Pages 43 to 45
"Cbe "Crust Company Idea and
its Development
The Trust Cjmpany Idea
It was formerly lai'l down that corporations coulil
not be trustees. The reason assigned for this rule was
that they could not be compelled to execute a trust, for
Courts of Equity in decreeing the execution of a trust
lay hold upon the conscience, and it is impossible that
a body so artificially created could have a conscience.
Again, it was said they could not be imprisoned if they
refused to obey the rules of the court (1). But these
technical rules have long ceased to operate, and to-day
in more than one country the trust company is as fimdy
established as the bank.
It is interesting to note how starting from a common
basis, the services of executor and trustee, distinct and
totally different types cf trust companies have been
developed in the British Colonies and the United States
reflecting on the one hand the conservative- British
character and on the other the versatile and organizing
genius of the American peoijle.
During the formative process of this new creation,
with its wide elastic powers, it has been tlifficult to
define the proper limits of the field which it ought to
occupy and the safeguards that are necessary for the
public. Conse([uently, generally speaking, legislation
(1) Pi-rry on trusts, .ith Ed. 42.
I
THH T RUST COMPANY
IDEA
has been tentative and experimental. It was wisely
said by a Greek philosopher, that in order to make wise
and useful laws, it is necessary to look at the laws and
systems of other countries (2). These short sketches
may be some help to this end. Yet if other duties can
be successfully undertaken in conjunction with the
functions of executor and trustee, trust companies
will not everywhere take precisely the same form, for it
IS natural to expect that in the future, as in the past
each country will develop its own type, having regard
to Its own needs, business methods and established
mstitutions.
That there is a wide field of useful work for the
corporate trustee has been proven by the independent
testimony of several countries, and to the name "trust
company" there is today attaching a well-eaiaed sig-
mficance and prestige. In this, at any rate thn-e can
be umtc". action that the name may be prote. ted from
misuse by companies who do not carry on the business
of executor and trustee.
(2) Arujtotle Pol. II, 1.
THE AMERICAN TRUST COMPANY
The American Tw-t Company
It has been said that the trust company is essen-
tially an American institution. It is truo that extra-
ordinary conditions and the remariiable growth of
individual and corporate wealth in the United States
during the last quarter of a century have produced there
an evolution of the trust company idea which is peculiar
to that country, and the development has no parallel in
nnancial history.
The first companies to carry on the business of
admimstrator and trustee in the United States were Hfe
insurance companies. An interesting account of the
birth of the Trust Company idea in the United States is
given in a book (1) published by the Pennsj ivania Com-
pany for insurance of lives and granting annuities
which was mcorporated in 1812. About 1830 the great
success of what in India were called Agency Houses
attracted the attention of business men in the United
btates. These were concerns organized to transact
business for trustees or individuals to receive money on
deposit and to administer estates. On February 4
1830, the directors of this Company appointed a com-
mittee to report on the advisability of entering ,;u "the
receipt of money from persons r.i,d in con.sideration
thereof carrying out and executing such trusts as the
persons giving the money should designate." But it was
not until 1836 that a supplementary charter was ob-
THE AMERICAN TRUST COMPANY
tained granting authority to receive property, real and
personal, in tnist and to accept trusts of every descrip-
tion, while the Courts were permitted to appoint the
company to the offices of trustee, assignee, guardian
and committee of lunatics. In all fairness, however,
this Company should divide the pioneer honours with
the United States Trust Company of New York, which
was incorporated in 1853, and was the first com;mny
organized in America to transact exclusively the busi-
ness of a tnist company. Its charter was tlie basis of
all special charters afterwards granted in New York, as
well as of the general law for the incorporation of trust
companies, which was adopted in 1887.
There are only four trust companies now in ex-
istence which began business prior to 1836: The Far-
mers Fire Insurance and Loan Company of New York,
incorporated in 1822; the New York Life and Trust
Company; the Pennsylvania Company for insurance
of lives and granting ■ nnuities; and the Girard Life
Insurance Annuity and Trust Company of Phila-
delphia. Prior to the Civil War there were not more
than half a dozen companies that actually undertook
a tnist business. Of the companies now in exist-
ence, forty-two began business between the years 1864
and 1875; ninety-nine between the years 1875 and 1885;
five hundred and eighteen between 1885 and 1900, and
nine hundred and twelve between 1000 and 1903. There
are, therefore, today over fifteen hundred trust com-
panies doing business in the I'nited States (2). They
have an aggregate capital of $317,000,000. surplus and
undi.ided profits of $363,000,000, individual deposits
THE AMERICAN TRUST COMPANY
of 12,122,000,000, and nearly M,000,000,000 of re-
sources (3).
The American Trust Company of to.lay comhincs
every function of financial business, an.l has been called
the department store of finance. In its later develop-
ment it is primarily not a trust company, but a bank,
with this distinction from the National and State banks,
that it dor not discount paper or issue bank notes It
also und. lakes the following functions: Business as
executor, administrator, assignee, tnisteo and agent
for mdividuals, business as trustee, agent, transfer
agent, registrar and liquidator for corporations, the
reorganization and promotion of corporations, the
underwriting of the stock of corporations, fidelity insur-
ance, the insurance of land titles, and a safe deposit
business (4). In the last few years there has been a
tendency to the amalgamation of companies in large
cities (5). It is only in the larger centres that the com-
plete trust company is f„und; in the smaller towns
companies with a small capital may be found devoting
their attention to any of the above functions under the
name of a trust company.
(2) Article hy Clay Herriek, in February number 10(14
Bankers' Masazine, published in New York.^Tl s is one ,f
Company, wlucl. are a valuable contribution to the subjc't
v^^J^^ a"*"^' ''.v Breckenrids;e Jones, Chairman. Trust Co
&ni^s?'l9M:' ""'"''"' ^-O'-''"". '" M"-!. number T™st
(4) Bankers' Magazine, April, 1904.
(5) Notably in St. Louis and Greater New York.
II
THE AMERICAN TRUST COMPANY
OriK.imiiy tlic luw iiiukerx of the diflerent states
upiH'ur to have iiitiMulcd that apart from iiisuraiicc the
primary biiMiricsM of u tnist coinpaiiy should be the
pxccution of trusts, and the other powers whieli were
granted were only intended to he ineidental and helpful
to the sueeessfiil oarryiu)? out of the duties ot a trustee.
The originators did not eontemplute the addition of the
duties of banking, safe deposit, fidelity and title insur-
ance. Uui the eoin|)anies disregarded llie intention of
tlie 1 islatures, and developed as they foimd most ad-
vantaHccus any of the powers with which they were
invested, ar 1 gradually, starting from the receipt of
deposits, they invaded the banking busine.ss. It is re-
markable that in every state there has been a surrender
to the demands of trust company promoters. In no
state does there appear to have been any legislation
rendering it possible to preserve the trust company on
he original lines by limiting the number of companies
to the demand for the .services of a trustee. (.)n the
contrarj', in nearly every state the general tendency
of legislation h:is Ijeeii to eidarge the scope of the trust
company's fun^ tions ((>).
There have been failures of coini)anies doing busi-
ness under tiic Jiame of a trust company (7). but it is
(0) Xew York Statutes, 1900, 71)4, M ..\p. provide tluit only
<-onx)ratioii9 form, il under the liiuikiiiK or in..<uramc luw may
have tlie m,.d tru-t as part of their name. A similar provision
appears in Statut's of Indiana, l.StW, iie, L'4th February Tlie
btatutes of .\ew lersty, l.SflS, :!!W, I Jmi., prohil.it trust eom-
p.-nies Irom ai'tuij.' as fire uisuriuiee ajjents.
(7) Bradstreets' Journal, Feh. 6th, lfl04, reports 41 failures
I'L "'"■' "i" ■ tfi'^t """Pumes in the eleven years from 1X03 to
mu:. melusive. This, however, e<inip»res very favorably with
the record o! the -National and State Banks u> tliis period.
la
The AMERICAN TRUST COM PANY
w>ry (liffidilt to ascertain what amcmit of trust fiin.ls
If any, has been lost by siu li failures, omoial.s of \,.w
\ork tnist roinpanios state that not a (l.,llar of trust
funds has ever been lost by the failure of a tn.st com-
pany in that city.
Tnist companies .li,| not invn.le the bankiriK busi-
ness without adverse criticism fro.n the leading Hnan-
eial papers and the banking interests. The remarks
of the New \ork superintendent of banking are tvpical
of the.sc views. In his report, ,late.l 10th January
188... he said: "The number <,f trust comi.anies has
increased beyond the wants of the state, and a general
law will be a benefit by helping t.. check their multi-
plication. Trust companies are needful, but only for
certain well-defined purposes. They are niisnuiied
and in some cases misleading, when in the garb of a
trust organization they exercisr the powers of a bank "
And again in his report, dated 23r,l February, 1904 he
says: "The right of trust companies to hold st'.ck.s in
pnvate corporations might wi.sely be defined, their right
to engage m underwriting schemes un(,ualiHedlv denied
and the obligation imposed upon them to carrj- a legal
reserve." The opposition of the Banking interests was
iiatural but the complaint of invaded territory- wa« no
doubt exaggerated. The editor of the Bankei-^' M„na-
zmc dealing with this point says : (8) "During the period
of the growth of trust companies there has been a cor-
responding increase in the number and linancialstrength
of the banks. A fair view of the matter seems to lead
to the conduMon that the trust companies have grown
(8) Bankers' .Magazine, .April, 1904.
la
THE AMERICAN TRUST COMPANY
. in response to the opening of a new field for financial
operations which the banks with their limited powers
and traditions of business were not calculated to fill,
and perhaps never would have filled. The growth of
the trust companies is analogous to the growth of great
private banking firms which has not excited the same
opposition from the other banks. The trust companies,
by cultivating and developing this new field have proba-
bly, if the facts were fairly marshalled, really added to
the business of the banks rather than taken from it.
The growth of trust companies has probably been chiefly
due to the greet increase in the wealth of the country,
rendering the old methods for the conseri^ation of estates
by agents, lawyers, exet-utors, administrators, etc.,
inadequate. This field was always a very large one and
the trust companies are gradually filling and enlarging
it as circumstances required."
The laws regulating the amount c ;apital required
and the safeguards imposed vary in the different states.
(9). The trust companies of the District of Columbia
aine are under the direct supervision of the Federal
Government. These companies are rated as among the
strongest institutions in the South, and the laws regu-
lating them are worthy of especial notice. They cannot
be incorporated with less than fl ,000,000 capital. One-
fourth of their capital must be deposited with the United
States Treasury as a trujt fund for the faithful discharge
of their fiduciarj* obligations, and the books are subject
to constant inspection.
(9) In Massachusetts and New York the directors of a trust
company are required to take an oath of office.
THE CANADIAN TRUST COMPANY
The Canadian Trust G>mpany
The history of trust companies in Canada was for
some years practically the history of one company,
the Toronto General Trusts Corporation, which was
organized in 1882 under special charter granted by the
Government of Ontario. From its incorporation it
has enjoyed the confidence of the Government and
courts of the Province; it invests the court funds of
the Government in mortgages guaranteeing the prin-
cipal and interest, and has full control and management
of all lunatic estates in Ontario. The company has
invested for the Court over 86,000,000 and has assumed
for the public and the Courts trust and estate business
amounting to over $40,000,000. In 1900 it absorbed
the Trusts Corporation of Ontario. In 1901 an im-
portant branch was opened in the Province of Mani-
toba, when the company acquired the business and
assets of the Winnipeg General Trusts Company, and
in 1903 it absorbed the Ottawa Trusts and Deposit
Company, and established an office in the capital city
of the Dominion. The capital stock of the company
stands at $1,000,000, all paid up, with a reseri'c
of $300,000. From its inception the policy of the
management has been dictated by a high sense of
its paramount obligations as trustee. It has not used
its wide powers except a.s inciilental to the purpose
for which it was created. It lias not risked its char-
acter and capital by underwriting the stock of indus-
trial enterprises ; it has not received deposits.
15
THE CANADIAN TRUST COMPANY
There are today seventeen trust companies in
Canada, counting the branches of the Toronto General
Trusts and the Royal, the Eastern and the National
Trust Companies all in as separate institutions. Of
these, five are in Toronto, two in London, Ont., one
in Ottawa, one in Vancouver, one in St. John, New
Brunswick, two in Montreal, four in Winnipeg, and one
in Halifax. Some of the existing companies are closely
associated with a loan company, and trust and loan
companies appear under the same headings in the Gov-
ernment reports and some of the City Directories.
It is not impossible that the American type of
trust company may find a foot hold in Canada. The
trust company charters that are granted by the Domin-
ion and Provincial Governments contain very wide inci-
dental powers. There is nothing to prevent a trust
company holding one of these charters from making
a living by one or more of its powers without doing a
trust company business. If any new trust companies
were organized to-day in Ontario they might be forced
to earn a livelihood out of something else than the busi-
ness of executor and trustee. Some of the existing
companies have shown a tendency to depart from the
more conservative line of policy. Public opinion is
unformed, and no general principles appear to have
been laid down to govern legislation in the various
Provinces.
Canadian legislation affecting trust companies is
generally in an incomplete and tentative condition.
Charters are granted by the Dominion as well as the
Provincial Governments, and there is no understanding
THE CANADIAN TRUST COM PAN Y
between the authorities as to the powers which shall
be granted. But inasmuch as the control of the courts
hes within the jurisdiction of the I'rovincial Govern-
ments, a company possessing a Dominion charter must
obtam an order-in-couneil from the I'rovince before it
can act as tnistee and administrator under the order of
the court. Ontario and New Brunswick are the onlv
Provinces which have pas.sed a general law affecting
trust companies; and in both ca.ses this general
law IS incomplete. In Ontario, trust companies are
govern, by the Trust Company Act and the Loan
Company Act, as well as the General Companies Act.
The provisions sometimes conflict, and are liable to
different interpretati<jns.
The Ontario Trust Company Act (1) provides that
the High Court may appoint a suitable person to in-
vestigate the afTairs and management of a trust com-
pany, and the Lieutenant-Governor may appoint an
inspector to e.xamine the affairs of such company and
report on the security afforded to those for whom its
engagements are held; the New Brunswick statute '.)
authorizes the appointment as trustee of a trust com
pany which is approved by the Lieutenant-Governor.
The company is subject to insp tion at any time, ami
IS required to deposit with th .teceiver-General sucl'
sum of money or amount of securities as he may decn,
sufficient as security for the proper performance b:
such company of its trusts within the Province.
(1) Revised ,St.it. Ontario, 1897, Cap. 206.
(2) Stat, of New Brunswick, 1902, Cup. lOfi.
u
THE CANADIAN TRUST CO MPANY
In both Provinces a trust company is prohibited
from issuing debentures. Manitoba is the only Province
which has in express terms (3) prohibited a trust com-
pany from receiving deposits, while the power is
granted in the General Acts of Ontario and New Bruns-
wick in respect to the sinking funds of municipaUties and
corporations.
The legislature of the Province of Ontario has the
distinction of being the first in the world to provide
against excessive competition; a very necessary pre-
caution if it is desired to confine trust companies to the
functions of executor and trustee. The Trust Company
Act provides that the Lieutenant-Governor-in-Council
may refer an application for incorporation to the High
Court of Justice for the opinion of the Divisional Court
as to the necessity for incorporation of the company
having regard to the business to be done, and com-
panies already incorporated and doing business, and
whether public convenience and advantage would be
promoted. The court shall receive affidavits filed by
any parties interested and hear counsel, and if the
opinion is unfavorable to the proposed company the
apphcation shall not be proceeded with. This pro-
vision, however, does not appear to apply to companies
who have obtained a Dominion charter.
The peculiar provisions of the Provinces of British
Columbia, Prince Edward Island and Quebec for the
appointment of individual trustees deserve especial
notice. In British Columbia the Lieutenant-Govemor-
in-Council may appoint one or more official administratora
(3) Revised stat. Manitoba, 1902, Cap, 170, Sec. .35.
18
THE CANADIAN TRUST COMPANY
(4) in each County, whose duty it is to apply to the
Court for an order to administer the personal estate of
any person dying in his County intestate or without
having appointed an executor. He is required to make
monthly returns and to pay to the Provincial Treasurer
any monies paid to him, as received, less his expenses,
actually incurred in burying the deceased, and in col-
lecting and preserving his estate ; all of which must be
vouched and allowed by the Provincial auditor.
On the death, resignation or removal of an official
administrator, his successor by virtue of his appoint-
ment becomes administrator of any property remaining
in his hands as administrator at the time of his death.
Every person appointed official administrator is requireil
to furnish security of not less than $2,000 as the Lieii-
tenant-Govemor-in-Council may direct for the faithful
performance of his duties and the security must bp
renewed every two years. The Court may also direct
an official administrator to take possession, manage,
mortgage, or sell the real estate of an intestate within
the Province and to execute any necessary deeds or
documents for this purpo.se (")). There are to-day eleven
official administrators. There has been but one case of
embezzlement, and this case was made good by the Gov-
ernment whifh is responsible for the proper conduct of
these officials (6).
(4) Official Administrators' Art B C
1897, Cap. 146.
(5) Interstate Estates Act, li. C, Ilevisod St:it\itr-
Cap. 106.
„ . .(6),,If«er Deputy Minister of Kiiianec of the i-rovince of
British Colunibm.
Uevisetl statutes,
l.Si)7.
"^"g CANADIAN TRUST
COMPANY
In Queboe, tu.., we fin,i the oil.oial in.liviJual
trustee. This Province like the State ..f Louisiana
and most European countries, is Kovernetl by laws
foun.le.! upon the R,mmn civil code, u>uler which the
old rule stdl obtains that a corporation cannot be a trus-
tee; consequently no corix.ration can be appointed exe-
cutor or ailnunistor by the courts of this Province The
old Roman office of curator still exists, and individuals
are appointed trustees by the court under this title.
The Province of Prince Edward Islan.l in 1900 pro-
vided for the re<,uircments of that Province by creating
the office of the RcRistrar of the Court of Chancery a
corporation with perpetual succession. Trustees and
admimstrators may transfer their trust to the Regis-
trar, and the court is authorized to appoint the Resis-
trar as trustee (7); but there is not much business done
in lus name. Where a trustee dies, property is fre-
quently vested in hi.n as an interim trustee; mortgaKes
are .sometimes take., in his name, but not to any great
extent (8). ^ ^
(7) Stat. Prince Edward Island, 1900, Cap. 2
(8) Letter Clerk of the Crown, Charlottetown, P.E.I.
THE TRUST COMPANY IDEA IN ENGLAND
The Trust Company Idea in England
As an Knj,'li^li itistitutidii the tr:st (■(unpaiiy iilea
has miidv. hltlu i)io;;r(,'ss in (Ircut Hritaiii in (■oniparison
with till' folonics and tlic I'nilod Slates, allhoiifrli safe
deposit companies and companies doin^ (idehty insur-
ance have existed for a niimhcr of years, and there
have been many agency concerns wliich take np some
of the other incidental duties of a trust company. One
obstacle has been the absence of any provision for the
renmneration of tnistees. This has been removed by
the Judicial Trustee Act of 1890, which jjrovides that
the High Court and certain other courts may upon
application appoint a trustee who will act under the
direction of the court, and also provides for the remu-
neration of such tn'steos. The opening for the cor-
porate trustee was further advanced by the Bodies
Corporate (Joint Tenancy) Act of 1899, which was
specially designed to facilitate the holding of trust
funds jointly by corporate bodies and individuals'
This appears to be a popular method, as it enables the
settlor or trustee to associate the company with any
personal friends in whom he has confidence. The trust
company need not interfere with the income; its ser-
vices can be used only to render secure the corpus of
the company, and the company does not interfere with
the duties of the family solicitor, in whom the confi-
dence of the settlor or testator is reposed. There are
no special laws governing trust companies in England,
21
THE
TRUST
COMPANY
but they are subject to the ordinary laws which govern
private trustees.
There is no company in Kngland which confines
itself exclusively to the business of executor and trustee.
In London we find the Trustee, Executors and Securities
Company, which in the fiduciary business has not ful-
filled the brilliant expectations of its promoters, and the
Law Guarantee and Trust Society. The latter com-
pany, which has an active trust department, was estab-
lished in 1888, and has a capital of .£2,000,000, of which
£2(X),000 is paid up, and a reserve of £180,000. Over
three-quarters of the paid-up capital is invested in
the names of the judges of the Supreme Court as
trustees for the society. Many of its shareholders
are connected with the legal profession and it has
branches in Dublin, Edinburgh, Birmingham, Glasgow,
Leeds, Liverpool, Manchester, and Newcastle-on-Tyne.
This company also undertakes fidelity insurance and
guarantees the payment of mortgages and debentures.
In Scotland many of the functions of a trust com-
pany are undertaken by the judicial factors, who, in
their various classes, correspond very closely with the
curators appointed under the old Roman Civil Code.
The Court of Se.ssions has exercised the right of ap-
pointing judicial factors for centuries, but it was not
until 1730 that the powers and duties of these officials
came to be regulated by the Act of Sederunt, which
governed all factors until the year 1889 except certain
classes which came under the Pupils Protection Act of
1849. In 1889 the Judicial Factors (Scotland) Act was
passed, which appHed to all judicial factors, and brought
IDEA
I N
ENGLAND
their administration under the superintendence of the
Accountant of the Court. As a matter of practice,
judicial factors in Scotland are only appointed by the
court, and are rarely, if ever, appointed by private
parties. The office of the Judicial Trustee, appointed
by the English Courts under the Judicial Trusii.es Act of
1896 and the Judicial Tru.stees Rules of 1897, is very
similar to the judicial factor in Scotland. The appoint-
ment may be applied for by the trustee or any person
interested in the trust. The judicial trustee is required
to lodge with the court a complete statement of the
trust property, and to correct it from time to time; to
give security, unless otherwise ordered; to keep a sep-
arate trust account at a bank approved by the court; to
lodge all documents of title with the bank subject to in-
spection by any person authorized by the court, and to
make up annual accounts and deliver them to the court
at fixed dates for audit. The Judicial Trustee Act like
the similar provision in Scotland has not come into
popular use and appointments are rarely applied for
by private parties. The only trust company in Scot-
land is the Public Trustee, Limited, of Edinburgh.
Interest in the trust company idea has been chiefly
aroused in the United Kingdom by the success of the
American and colonial companies, some of whom have
a London office ; and the trust company idea is growing
in popularity. In transactions witi. another country
there is always a difficulty in knowing exactly whom
to rely upon. The element of personal acquaintance
is often impossible and with the growth of business
the English public are learning that the established
colonial trust company can be made very useful.
THE TRUST COMP ANY IDEA IN ENGLAND
English comj)aniea and pstaiP^ «,!>,> k,
" larger profit tlnf . Capitalist, who look for
countrv ? ' ^"""^ '"">""* knowledge of the
to make usp f T . ! "^ '"''"""^■'' '"'o 'naming
interest ind ,liv; i 7 '''■'* "'"' '"''""ts rents,
a d t n """'. "'""J^ ; " Poy^ taxes and keeps insurance
pa.d np, ,t w,ll accept and act under power of attornev
s:;^rr;:;r;::,:';r^--'--"ad^
will advise us to ,1^.7! P^P'^'y '" 'f"st.- it
THE NEV ZEALAND PUBLIC TRUST OFFICE
The New Zealand Public Trujt Office
In all of the Australian colonies, the Govern-
ment has .hroetly or .ndirectly the charge of trust
U.KK It wa. found that there wa, a tenfptatio :
he treasurer to use the nx.ney for (iovemment pur-
JH..se«, which resulted in extravagance. It was o -
puontly deci.led in New Zealand to plaee all tru t
S ';?'"','"'"•'« "f " -P"ate official specially :;
pouted for the purpose. (1) Thi.s led to the creation
t e P ,^'t '"■"' ''""''■ ^^'^•" --^ eons t re^ bv
he Pubhc Trust Olfic, Act of New Zealand in 1872
(2) and was "designed to afford a convenient recourse
where person, are in doubt as to the choice of a "Z"e
and to relieve those who may be unwilling or unable to
continue administration." The scope of the office wis
PubfT '" '%'"'^«,"^'««°-l agency functions b ■ The
Public Tnist Olhce Consolidation Act of 1894
The Public Trust Office is a department of the
Government service. The good faith of the adminL
tration is guaranteed by statute and the credit o Z
colony IS pledged to maintain the integritv of Z
capital fund.s placed in the Trust Office wh'e"" there i
no direction for the investment of such funds, o- where
there is no direction for such investment other than
(1) Handbook of the Seven Australias
Law Socio y at l" erS oX iqm ''''k '■J?'' '"^'"^^ *e
woodeJtCoUimdon?^ ' '' "*"^' Published by Spottis-
THE
NSW
ZEALAND
generally that tlie funds are to be inserted at the option
of the Public Trustee in General Government Securities
of New Zealand or in mortgages of real estate within the
Colony. A common rate of interest is determined from
time to time by ordcr-in-council to be credited quarterly
to the properties, free of all charges of the Public
Trust Office. Before the Public Trustee can accept any
appointment he nmst obtain the consent of an advisory
Board styled the Public Trust Office Board, consisting
of the Colonial Treasurer and two other members of the
ministry, with four other officials of whom three form a
quorum. The Public Trustee cannot accept an ap-
pointment conjointly with any other person.
The advantages of the office are thus set out in
the New Zealand Year Book; "A person making a
will or arranging a trust or purposing the appoint-
ment of an agent or attorney, must always be seri-
ously concerned as to the security of the funds and
the larger the amount of the funds the greater will
be the concern for the security, and the less for the
rate of interest. Private executors, trustees or agents
or attorneys may be without the means of repairing
the errors for which they are accountable or may in
cases where their acts are justifiable make disastrous
and rumous investments. The draft of a will, deed
of trust, settlement or power of attorney, will,' when
required, be examined in the Public Trust Office free
of charge for the purpose of bringing to light any pro-
visions which may be ambiguous. Wills of living pereons
may be deposited for safe keeping." Upon the death
mtestate of any person domiciled or having property in
I*
PUBLIC TRUST OFFICE
New Z<"alanil the I'ublic Trustee is entitled to admin-
istration as of riKht; where an <'Hate is under J2.50 he can
administer without even obtaining a grant and wliere
a person dies intestate and an application is not made
for a grant within three months he ran apply for and ob-
tain letters of administration unless the executive can
satisfy the Court that the delay has been unavoidable
or accidental. All capital monies are invested in a
common fund. Contrary to the usual practice, the
invested trust funds are not kept separate unless other-
wise directed by the testator. Interest on the monies
so invested is paid quarterly at a rate to be determined
by the Governor-in-Council. Provision is made that if
at any time the conmion fund is insufficient to meet the
lawful claims thereon the Colonial Treasurer shall pay
out of the Consolidated Fund sufficient to make up such
deficiency.
By the Lunacy Act of 1882, the public trustee
is authorized to undertake the administration of the
estate of lunatics in every case where no committee
may be appointed for the estate. Nincl> per cent
of the estates of the lunatics in the asylums are ad-
ministered by the public trustee.
The total value of the estates ir. the hands of the
public trustee, in 1903, was as follows: Wills and trusts,
£1,279,743; intestate estates, £197,.368; real estates
£7,585; lunatic estates, £170,585; native reserves,
£375,000; West Coast settlement reserves, £655,000;
unclaimed lands, £21,504; making a total of £2,706-
785. (3).
(3) New Zo.ilaiid Year Book, 1903.
tl i'
THE NEW ZEALAND PUBLIC TR UST OFFICE
New Zcalanders apparently do not believe in giv-
ing a monopoly of the trust business to the Govern-
ment. At any rate there are some people who prefer
to employ a company rather than a Government official
for the Public Truster m-' to compete with the private
enterpnse of two trust companies at Dunedin.
|l)
THE AUSTRALIAN TRUST COMPANY
The A«st-n.tn Ttorf Company
Australians do not he!ieve in f.e financial depart-
mental store No p,o..-..o,. ,,as been ma.le n the
Commonwealth, as in Ontario, to limit the number o
trust company charters that are grante.l so that thev
shall not exceed the public deman.l. but they have
d. ne their best to frame their legislation so as to confine
the --ust company to its duties as trustee
Incorporation is obtained under the General Com
pan.es' Act, but power to act as executor and admin-"
•stra or must be granted by special act of Pari ament
and the mc.dental powers that are given by the iJC
ature are hm.ted to such as are strictly incidentafto
the functions of a trustee. The directo.^ a.id the man
Ssir^ '" ''^'^°" ^- ^"-^ ^---^ "f -St and
fidelitHf ""^P^"'""' ^''^ P«™itted to guarantee the
fidelity of an executor. All companies are responsible
the Supreme Court, and accounts are from time to
time filed there, which accounts are open to inspec ion
denos7 . ^''''' '"'"P''"^ '^ ^''^"'^«J to make a
depos, m cash or securities with the treasurer of the
Sons (1) ■"■"'"' P^^°'™^"»« °f it« fiducial obli-
The public trustee of New Zealand is not found
rail O ,f' '"'" '°''"^^^' "^"t '" .South Aus-
tralia. Queensland and Western Australia there is a
THE AUSTRALIAN TRUST COMPANY
public official deputed to act as trustee in the case
of unclaimed and intestate estates, whose duties in
many respects are similar to the functions of the Judge
of the Court of Probate in England under the Act of 1858.
Evidently, the trust company idea is firmly estab-
lished in Australia. There are fourteen trust com-
panies in the Commonwealth, some of which have
branch offices. Of these, five have their head office in
Melbourne, one in Ballarat, one in Bendigo. two in
Sydney, one in Adelaide, one in Hobart, one in Bris-
bane, one in Launceston, and one in Perth. They all
pay a fair dividend to their shareholders. In 1903, the
total net profits of the companies were £39,273, and
the value of the estates in hand is estimated at between
£21,000,000 and £22,000,000 (2).
The first trust company to be formed in Aus-
tralia was the Trustees, Executors, and Agency Com-
pany of Melbourne, which was incuiparated in 1879.
This company, which to-day ranks first in the Common-
wealth, has a London agency at 1 Delahay Street, West-
minster. It has a subscribed capital, with double
liability, of £150,000 of which £90,000 is paid up, and a
reserve fund of £11,043. The amount at the credit of
estates, trusts and clients, on the 30th June, 1903, was
£7,467,202, and in the last sixteen years it has sold over
£3,000,000 of real estate.
It is on record that the promoter of this company
received his inspiration fmm the local demand for a
perpetual executor, and the example of a successful
(2) The Australasian Insurance and Banking Record, De-
cember. 1903.
THE AUSTRALIAN TRUST CO MPANY
trust company which had been established in South
^nca. It may not be amiss to quote in full a portion
of his testimony as taken before the Select Committee
of the legislative assembly of Victoria on his applica-
tion for a charter in 1879: "In consequence of the diffi-
culty in getting executors and trustees to act, I thought
I might do well by entering into the business of execu-
tor and trustee tnd to act for absentees. I found that
the idea took very well and several persons appointed
me their executor and trustee; but other persons raised
the question as to what was to become of their estate
in the event of my dying, or becoming incapable before
I had administered the estate; and of course I could only
reply that my executor,if I had one, must be my successor
«ut 1 did not find that very satisfactory to them About
this time I heard a company had been in existence at
the Cape for a number of years which had carried on
the business of executor, trustee and agent, and it
seemed to me that that got over the difficulty to a great
extent that had been raised by persons willing to em-
ploy mc, but who were deterred by the fact that they
did not know who would take my place. A company
having perpetual succession, it appeared to me, would
not be placed in the same position as an individual "
The Australian press generally speaks of the use-
fulness of the trust company in terras of high praise
Thus, The Age," on 12th June,1901, says: "Trustee com-
panies are to most people preferable to private trustees
inasmuch as the best management of any estate can be
insured, owing to specific knowledge being brought to
bear on all points, as well as to the fact that companies
THE AUSTRALIAN TRUST COMPANY
cannot walk off with the ease of a private individual."
"The Australasian Insurance and Banking Record," on
21st December, 1903, says: "The usefulness of trustee
companies in Australia has long been demonstrated and
the record of progress which we give is satisfactory." And
"The Australasian," in its Jurist column, under date
15th August, 1903, says: "One is led to wonder at
times, on the one hand, that any testator cares to
trust the execution of his will to a friend, who may die
just after his own decease, and leave the administration
of the estate to strangers; and, on the other hand, that
any private person is ready to take the risks of trustee-
ship. After the death of the trustee, the children of
the testator may bring proceedings against the trustee's
representatives for perfectly innocent breaches of trust,
and also for breaches of trust by a co-trustee, which the
deceased trustee never dreamt of, but which the court
thinks he ought to have discovered. The assumption
by individuals of trust obligations is an integral part of
the system of English law, but in these states the for-
mation of trustee companies with staffs whose duty it
is to look after estates and see that the rights of bene-
ficiaries are preserved, gets rid of the necessities of the
situation, as experienced in England, and the marvel is
that any person who is making a will should hesitate to
appoint such a company to stand in his shoes when he
is gone. In the uncertainties of death the certainty
(morally speaking) of an efficient trustee is a rock to
which the wise will cling. The fixed charges of the
trustee companies are a kind of insurance premium
against the ordinary risks f trusteeship."
THE AUSTRALIAN TRU ST COMPANY
The business of trustee conipanias is steaUily in-
creasing in Australia, especially in Victoria, where there
have lieen some glaring instances of fraud by private
trustees and solicitors, who occupy the dual position
of trustee and solicitor to the same estate.
THE TRUST COMPANY IDEA
i
n
The Trust Company Idea in Other Countries
The South Africans have copied the United States
in building the trust company business upon the foun-
dation of life insurance. In Johannesburg there are
four trust companies, two of which also do life insurance.
There are no other trust companies in the world, except
in Mexico, which has lieen invaded by the American
spirit. I I the city of Mexico wc find the .Mexican Trust
Company, a purely American foundation, and one or
two other companies, which have latelv been organized
(1).
In the older countries the Rround is fairiy well
covered by other machinery. In India the agency
firms attend to the management of estates and per-
form many of the functions of a trustee. Their wealth
and prestige, combined with good management, com-
mands public confidence. In Germany, Austria, and
some other parts of the coatinent, mortgage banks
exist in great numbers. These institutions, originally
created to aid agriculture, undertake some classes of
the work assumed by trust companies in the United
States, such as the recei])t, exchange, and ...jtribution
of securities in cases of organization, reorganization and
consolidation.
In France, the Boards of Trade, Chambers of
Commerce, and other quasi governmental bodies act
(1) Paper by Hon. Chas. Franci.s Philips, read before the
meetinK of Amencan Bankers' Association, held at Milwaukee
16th October, 1901.
I N
O T H ER COUNTRIES
as trustees in matters of bankruptcy, receivership,
and liquidation, and institutions, such as the Soci^ti
Generale, the Credit Lyonnais, and the Credit Fon-
cier, undertake on a liuge scale, with remarkable suc-
cess, what is perhaps the most prominent function of
the American Trust Company, viz.: to gather together
the long-time funds of the community, whi^h are not
wanted in daily commerce, and to lend thei". on the
pledge of first-class securities.
It is interesting, incidentally, to note that in tlu.so
countries, where people do not, as in .America, move
from place to place, credit is more highlv \-alucd by the
borrower, and the l)anks are. therefore, able to leml'vast
sums of money in small amounts to poor men on per-
sonal security, where elsewhere they would be forced
to pay e.xorbitant rate.-i of interest.
THE FUNCTIONS OF A TRUST COMPANY
n
i
The Functions of a Trust Company
What are the functions of a trust company? A
different answer will be given to this question in dif-
ferent countries. In the United States a trust com-
pany can iindertake a ba.iking business, the guaranteeing
of land titles, the underwriting of stock, and practically
everj'thing and anything of an agency description that
will pay. In Australia and in Canada trust companies
as we have seen, have been .leveloped upon .afferent
lines; and the manager of a well-conducted company
under thi.s name would reply that there are some things
which ought not to be done by a company to which the
Government grants a charter for the purpose of attend-
ing to the interests of its wards, the orphan, the helpless
and insane. It must not incur obligations to the public
except in its capacity as trustee; and the invasion of the
financial departmental store must be repelled, because
the company which is confined to the functions of ex-
ecutor and trustee needs protection from the competi-
tion of the general agent.
The foundation of the trust company idea is the
failure of the individual trustee. There are few people
who cannot recall some instances where a widow left
sole executri.x, has been badly advised, and lost all' that
she had; where the man whom everybody trusted
speciilated with the moneys placed in his care, and was
unable to make restitution, or where the fortunes of a
family have been wrecked by the absconding of a trusted
llil !
THE FUNCTIONS OF A TRUST COM PANY
frioMcl. (1). The trust company ofTers insurance
afjainst loss from these sources; and it is as necessary as
insurance against fire. In the British Colonics it is
argued that this insurance is rendered more effective
if the trust business of the country is concentrated in
a few companies and tlic whole time and thought of the
officials IS devoted to the work; and it is right that it
should be so, because the business is limited and there
are important interests at stake. The trust company is
entrusted with the most sacred responsibilities. It is
the guardian of family secrets; it has in its care the
welfare and future of many families; it is the adviser
of the helpless and unprotected and it is the trusted
agent of the absentee. On the other hand in the fnited
States It is claimed that, under wise management the
addition of a Savings Bank business and certain other
functions is not only a convenience to the public, but it
facilitates the trust business of a company and is nec-
essary to give it added strength in the early stages of
development and in the smaller towns where there is not
a large volume of trustee business to be done, while
advocates of the depart, -ntal store idea say that, with
adequate capital to meet all requirements, it is as prac-
tical and as useful in finance as in commerce. Business
of one department brings business to another; and it is
a great convenience, which is particularly appreciated
by women for whom a special department is organized
by many Companies in the United States.
^(K -IV- j"'!.' '",''' "^'^ '^'^'^ °f K«neral popular support to the
official individual trustee in Great BritaiVand elsewher" Ante
THE FUNCTIONS OF A TRUST COMPANY
,!•
'
The functions of the professional trustee com-
pany are manifold. It acts as executor or joint executor
under a will, as administrator by direction of the next
of kin, executors or a creditor entitled to administration
who wish to renounce their responsibilities, as trustee
of marriage and other settlements, as executor, ad-
ministrator, or trustee in place of persons wishing to give
up such positions, as committee of the estates , f lunatics,
and it undertakes the management of estates as agent
or attorney under power for absentees or people who
wish to be relieved from the worry and trouble of busi-
ness. Acting in these capacities, it undertakes the
fulfilment of all kinds of contracts, buys and sells real
estate, collects rents, interest and dividends, attends
to repairs and insurance, pays taxes, and buys and sells
all kinds of investni.;, •,. To maintain the equipment
necessary to fulfil thcs. duties better than an individual,
and to make it pay, the trust company offers various
services to the public. Thus every properly equipped
trust company has a .safe deposit branch. It will
undertake to invest the funds of any person, and guar-
antee the prompt payment of interest. It can act
as liquidator and assignee of insolvent estates. It acts
for corporations in arranging amalgamations, as mort-
gagee for the securing of bonds, and as registrar and
transfer agent. It is in a peculiarly advantageous
position for undertaking a general real estate agency,
and also to act as an appraiser of real estate.
And there is another legitimate and useful field
of work for the colonial trust company. The problem
of new countries has always been how to safely attract
THE FUNCTIONS OF A TRUST COMPANY
tho moiioy that w stored in the old. How is the Old
Country investor to collect specific investments for
consideration? How is he to be protecte<l from the
unscrupulous promoter, from iRnoraiice, incom|)etenco
and fraud, from the over-sanftuirie temperament of the
trusted friend? To whom is he to entrust the care of hia
investments across the leas? In the established and
well-managed trust company this medium can be found.
It has all the necessary office machinery developed in
every department; it has responsible afents and corre-
spondents all over the country; it is in constant touch
with the field of investment. It can olTer to the in-
vestor tlic advice of an experienced manafjer and of a
board of directors composed of men who know the coun-
try, and have been selected for their intecrity, knowledge
and business capacity, and it is a con\enient medium
to hold deeds and money in escrow pending the com-
pletion of an agreement.
THE ADVANTAGES OFFERE
The Advantages OUeted by a
Trust Gnnpany
The stock in trade of a tnist company is special
skill, constant vigilance, permanence, reliability, and,
most important of all, good management. The ad-
vantages in selecting a wcll-manageil trust company to
act as e.vecutor and trustee are written in large letters
in the literature of every company. The tnist com-
pany does not die. This is a substantial advantage, Iw-
causc trusts frequently last for twenty-five or fifty years.
The creator of a trust may select the original trustee*
with the greatest care, but it is inipossilile for him to
control the selection of their successors. The trust com-
pany is always available; it is never ill. and never takes a
vacation; its officers are experts in the management
of estates; the execution of trusts is their primary con-
cern and not subordinate to other interests, as is some-
times the case with individuals. These officers know
how to meet each emergency as it arises, and how to
make the best of estates committed to their charge. It
is in constant touch through its manager and directors
with the financial world, and is constantly on the watch
in the interests of its clients to procure new investments
and advise when a change of investment is desirable.
A trust company cannot abscond. Its clients have the
whole capital of the company as security for the faithful
performance of its duties, and it keeps a separate ac-
Ei;*
B Y
TRUST
COMPANY
('i)iiMt of cucli trust. s(i timt iii> Irii-il iiituls ciii Ix' iiii-
pcrilcd in tli(> pii>sil)l(' event nf disiisti-r. It has proiwr
vaults for tile keopina of securities, utnl reaulur ilepart-
iiients f(ir every detail cif tlie wurk In he ddue. Its ad-
vice is wholly disinterested, and as the custodian of
family secrets it is as impersonal and s- crotive as the
Ijjiyplian sphinx. It costs no more to employ a tru.~;
company than an individual.
And there are other advantages in em|)loyinK a
trust company which have not been Kenerally adver-
tised. No man cares to he mider an ohli^atioii to a
fr' nil or relative in liis life: still less -is he willini; to
place his family in this position after he is yone. I'orin-
erly no other course was open to the man who had
property to leave behind him after death; but \uth the
advent of the trust company the necessity for this lias
disappeared. The trust company is always available as
an alternative; and t lie e.\ecutor need iiowuiia) tVc-l no
compunction in renouncinj; his inwition.
To (|Uote from an Australian writer: "It is difTi-
cult, indeed, to see how any private individual would
willingly accejit tlie position of executor, unless it be
' e laiiii'v solicitor, who makes his living out of such
■vij.k. A man onci^ an executor finds himself always
a prisoner, because he is oblifjed to fjive much more
time and attentioii to his trust work than to his own
business, and tlie anxiety is unceasing. The ilariger
of mistakes occurrin;; owiiif: to inexpeiieiice is con-
siderable, the nsponsibilities arc enormous, and the
personal liability never ends. lie may perform his
duties conscientiously, but he will never be given any
ADVANTAGES OFFERED BY A TRUST COMPANY
thanks for his trouble. On the other hand, he may
find himself at loggerheads with the members of his
family, and perhaps be involved in law suits and other
worries. There is no more fruitful source of discord
between relations and friends than is brought about
over the administration of wills and trusts."
APPENDIX
Australian Trust Q>mpanies
Trustees, Executors and Agency Co., Melbourne.
Union Trustee Co. o< Australia, Melbourne.
Equity, Trustees, Executors and Agency Co., Melbourne.
National Trustees, Executors and Agency Co. of Australia,
Melbourne.
Perpetual Executors and Trustees Association of Australia,
Melbourne.
Ballarat Trustees, Executors and Agency Co., Ballarat.
Sandhurst and Northern District Trustees, Executors and
Agency Co., Bendigo.
Permanent Trustee Co. of New South Wales, Sydney.
Perpetual Trustee Co., Sydney.
Executor Trustee and Agency Co. of South Australia,
Adelaide.
Queensland Trustees, Limited, Brisbane.
Perpetual Trustees, Executors, and Agency Co. of Tasmania,
Hobart.
Tasmanian Permanent Executors and Trustees Association,
Launceston.
West Australian Trustee, Executor and Agency Co., Perth.
APPENDIX (Continued)
\i
Canadian Trust Companies
Imperial Trust Company of Canada, Toronto.
National Trust Company, (Branches at Montreal and Winni-
peg), Toronto.
Toronto General Trusts Corporation, (Branches at Ottawa and
Wmnipeg), Toronto.
Trusts and Guarantee Company, Toronto.
Union Trust Company, Toronto.
Canada Trust Company, London.
London and Western Trusts Company, London.
Royal Trust Company, (Branch at Winnipeg), Montreal.
Eastern Trust Company, (Branch at St. John, N. B.) Hali-
fax, N. S.
Standard Trust Company, Winnipeg.
British Columbia Trust Company, Vancouver.
-^--r^-— .-"-i ^ --f -<f^T-,
APPENDIX (Continaed)
Trust Companies in Great Britain
Law Guarantee and Trust Society, 49 Chancery Lane, London.
Trustee, Executors and Securities Co., 1 Delahay Street,
Westminster, London.
Public Trustee, Limited, Edinburgh.
Trust Companies in the United States
A complete list can be obtained from The Editor,
Companies," 48 Cedar Street, New York, N. Y.
' Trust
PRESS CRITICISMS
Mail and Empire, Toronto
"Mr. Heaton is not wanting in audacity. He breaks new
ground, and ,n e.ght short chapters attempts to treat a world-
wide movement involving many millions of dollars, which
ni.ght well fill a book of no mean proportions. Still the book
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m a few words, and by the help of a clear and vigorous style
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